Shaoxing Xiangyu Green Packing Co., Ltd. v. United States

Slip Op. 13-10
UNITED STATES COURT OF INTERNATIONAL TRADE
FUWEI FILMS (SHANDONG) CO., LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Leo M. Gordon, Judge
Consol. Court No. 11-00061
OPINION
[Remand results sustained.]
Dated: January 24, 2013
David J. Craven, Riggle & Craven, of Chicago, IL, for Plaintiffs Fuwei Films
(Shandong) and Shaoxing Xiangyu Green Packing Co., Ltd.
David 	F. 	D’Alessandris, 	Trial 	Attorney, 	Commercial 	Litigation 	Branch, 	Civil
Division, U.S. Department of Justice, of Washington, DC, for Defendant United States.
With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney
General, Jeanne E. Davidson, Director and Patricia M. McCarthy, Assistant Director. Of
Counsel on the brief was Whitney Rolig, Office of the Chief Counsel for Import
Administration, 	International 	Trade 	Administration, 	Department 	of 	Commerce, 	of
Washington, DC.
Ronald I. Meltzer, Patrick J. McLain, David M. Horn, and Jeffrey I. Kessler,
Wilmer, Cutler, Pickering, Hale and Door, LLP, of Washington, DC, for Defendant-
Intervenors DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray
Plastics (America), Inc.
Gordon, Judge: 	This consolidated action involves an administrative review
conducted by the U.S. Department of Commerce (“Commerce”) of the antidumping duty
order covering Polyethylene Terephthalate (“PET”) Film from the People’s Republic of
China. 	See Polyethylene Terephthalate Film from the People’s Republic of China,
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76 	Fed. 	Reg. 	9,753 	(Dep’t 	of 	Commerce 	Feb. 	22, 	2011) 	(“Final 	Results”) 	and
accompanying Issues and Decision Memorandum, A-570-924 (Feb. 14, 2011), available
at 	http://ia.ita.doc.gov/frn/summary/prc/2011-3909-1.pdf 	(last 	visited 	this 	date)
(“Decision Memorandum”). 	Before the court are the Final Results of Redetermination,
Oct. 15, 2012, ECF No. 70, (“Remand Results”), filed by Commerce pursuant to Fuwei
Films (Shandong) Co. v. 	United States, 36 CIT ___, 837 F. Supp. 2d 1347 (2012)
(“Fuwei”). 	The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006), 1 and 28 U.S.C.
§ 1581(c) (2006). For the reasons set forth below, the Remand Results are sustained.
I. Standard of Review
For 	administrative 	reviews 	of 	antidumping 	duty 	orders, 	the 	court 	sustains
determinations, findings, or conclusions of the U.S. Department of Commerce unless
they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing
agency determinations, findings, or conclusions for substantial evidence, the court
assesses whether the agency action is reasonable given the record as a whole. Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). 	Substantial
evidence has been described as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” 	DuPont Teijin Films USA v. United
1 Further citation to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2006 edition.
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Consol. Court No. 11-00061 	Page 3
States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). 	Substantial evidence has also been described as “something
less than the weight of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency's finding from
being supported by substantial evidence.” Consolo v. Fed. Mar. Comm'n, 383 U.S. 607,
620 (1966). 	Fundamentally, though, “substantial evidence” is best understood as a
word formula connoting reasonableness review. 	3 Charles H. Koch, Jr., Administrative
Law and Practice § 9.24[1] (3d. ed. 2012). 	Therefore, when addressing a substantial
evidence issue raised by a party, the court analyzes whether the challenged agency
action “was reasonable given the circumstances presented by the whole record.”
Edward D. Re, Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National
Courts § 13342 (2d ed. 2012).
II. Discussion
Familiarity with the court’s decision in Fuwei is presumed. 	In the Final Results
Commerce sourced data from the Indian Harmonized Tariff System (HTS) categories
3907.60.10 	and 	3907.60.20 	to 	derive 	a 	surrogate 	value 	for 	the 	PET 	chips 	of
respondents, Fuwei Films (Shandong) Co., Ltd., and Shaoxing Xiangyu Green Packing
Co., Ltd. (collectively “Respondents”). 	Decision Memorandum at 12-16. 	In Fuwei
Respondents 	persuaded 	the 	court 	that 	Commerce’s 	reliance 	on 	HTS 	category
3907.60.20, 	as 	opposed 	to 	3907.60.10 	alone, 	was 	unreasonable 	given 	the
administrative record (unsupported by substantial evidence). 	Fuwei, 36 CIT at ___,
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837 F. Supp. 2d at 1356-57. 	The court remanded the issue to Commerce to clarify or
reconsider its use of Indian Harmonized Tariff System (HTS) category 3907.60.20 in
calculating a surrogate value for Respondents’ PET chips. 	Id., 36 CIT at ___, 837 F.
Supp. 2d at 1358-59.
At the same time, the court found wanting the argument of petitioners, DuPont
Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray Plastics (America),
Inc. (collectively “DuPont”), that HTS category 3907.60.20 was the one proper data
source. 	Id., 36 CIT at ___, 837 F. Supp. 2d at 1356-57. 	During the immediately prior
administrative proceeding the “DuPont Group” (consisting of the participating mandatory
respondent, DuPont Teijin Films China Limited, together with DuPont Teijin Hongji Films
Ningbo Co., Ltd., and DuPont-Hongji Films Foshan Co., Ltd.—all apparent affiliates of a
petitioner here, DuPont Teijin Films), persuaded Commerce that HTS 3907.60.10, not
3907.60.20, was the proper data source by identifying different testing standards in
China (ISO) and India (ASTM). See id., 36 CIT at ___, 837 F. Supp. 2d at 1354-55. In
Fuwei DuPont failed to account for that prior successful litigating position, arguing,
unconvincingly, that the administrative record did not support use of the ISO standard in
China despite the record containing the same information that DuPont’s affiliates
submitted in the investigation. 	Id., 36 CIT at ___, 837 F. Supp. 2d at 1356-57. 	The
court noted the prior litigating position and concluded DuPont’s argument lacked merit.
Id. (“At the outset, the court must note that DuPont has assumed a somewhat difficult
position by arguing that HTS 3907.60.20 constitutes the only proper dataset (for
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Respondents PET Chips) shortly after the DuPont Group successfully argued in the
investigation that HTS 3907.60.10 is the only proper dataset (for the DuPont Group's
PET chips”).
On remand, Commerce determined that all of Fuwei’s and Green Packing’s PET
chips were properly classified under Indian HTS category 3907.60.10. Remand Results
at 19. 	Commerce found that the intrinsic viscosity for all of Fuwei’s and Green
Packing’s PET chips had been tested using the ISO 1:1 methodology. 	Commerce
based its determination on this Court’s decision that Commerce reasonably inferred
from the record that the ISO 1:1 test was used in China. Id. (citing Fuwei, 36 CIT at ___,
837 F. Supp. 2d. at 1356). 	Commerce also inferred that Indian Customs uses the
ASTM 	3:2 	methodology. 	Commerce 	determined 	that 	all 	of 	Fuwei’s 	and 	Green
Packing’s PET chips would fall within the range for Indian HTS 3907.60.10 once the
intrinsic viscosities were converted from ISO 1:1 to ASTM 3:2. 	Commerce therefore
reasonably determined from the administrative record that Indian HTS 3907.60.10 was
the best available information for valuing Fuwei’s and Green Packing’s PET chips.
Remand Results at 11-19, 26-35.
DuPont continues to challenge Commerce’s determination that HTS category
3907.60.10 	is 	the 	“best 	available 	information,” 	19 	U.S.C. 	§ 	1677b(c)(1), 	for
Respondents’ PET chips. 	DuPont, however, now argues that the administrative record
does not support that the ASTM standard is used in India (as opposed to its previous
argument that ISO is not used in China). The court again concludes DuPont’s argument
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lacks merit. In the Remand Results Commerce reminded DuPont that it was the Dupont
Group who stated in the investigation, “The ASTM test method is the prevailing
standard in many countries, including India.” Remand Results at 30.
DuPont attempts to explain this away, suggesting that the DuPont Group’s
statement did not reflect first-hand knowledge and only indicated a litigation position
from a prior proceeding with a separate record and separate findings. 	Def.-Int. Cmts.
Objecting 	to 	Commerce’s 	First 	Remand 	Redetermination 	at 	13-14, 	ECF 	No. 	85
(“DuPont Br.”). 	Problematically for DuPont, the administrative record here does not
demonstrate that Indian Customs uses any other testing method, such as the ISO 1:1
test used in China. 	Id. at 18. 	As is the case with many antidumping issues, the record
is open to interpretation. 	DuPont had an additional 18 months between the publication
of the Final Results and Commerce’s remand questionnaires to acquire and submit
record evidence that the ISO standard is used in India, as well as to clarify and correct
for Commerce, the other interested parties, and the court, the prior successful litigating
position 	of 	its 	affiliate 	the 	DuPont 	Group 	(for 	example, 	explaining 	whether 	the
certifications accompanying the DuPont Group’s prior submissions, see 19 C.F.R.
§ 351.303(g), were valid and made in good faith). It did not.
DuPont also argues that “[n]o reasonable mind could infer from” the record
evidence “that the ASTM method is the only testing method used by Indian Customs.”
DuPont Br. at 13. 	Just as it did when challenging Commerce’s inference that the ISO
standard is generally used in China, DuPont again erroneously assumes that the
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reasonableness of Commerce’s findings with respect to the utilization of ASTM in India
depend on absolutes and evidentiary exactitude. 	See Fuwei, 36 CIT at ___, 837 F.
Supp. 2d at 1355-56. 	As the court previously explained, “the statute does not require,
nor have the courts imposed, a requirement of evidentiary exactitude for Commerce’s
surrogate valuations.” 	Id., 36 CIT at ___, 837 F. Supp. 2d at 1356. 	And judicial review
of “Commerce’s action here does not depend on absolutes like always or never, but
instead on whether Commerce’s inference about [India’s ASTM utilization] is reasonable
given the information on the administrative record.” Id. Here, it is. Commerce carefully
considered 	and 	explained 	the 	record 	evidence, 	as 	well 	as 	the 	lack 	of 	evidence
supporting 	DuPont’s 	other 	preferred 	outcomes. 	Remand 	Results 	at 	26-35.
Commerce’s 	determination 	that 	Indian 	HTS 	3907.60.10 	was 	the 	best 	available
information for valuing PET Chips—a result first conceived, argued, and supported by
the DuPont Group—is more than reasonable given the facts and circumstances of the
administrative record, and therefore must be sustained.
III. Conclusion
Commerce’s Remand Results are sustained, and judgment will be entered
accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 24, 2013
New York, New York
Case 1:11-cv-00063-LMG Document 27 Filed 01/24/13 Page 7 of 9

UNITED STATES COURT OF INTERNATIONAL TRADE
FUWEI FILMS (SHANDONG) CO., LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Leo M. Gordon, Judge
Consol. Court No. 11-00061
JUDGMENT
This 	case 	having 	been 	submitted 	for 	decision, 	and 	the 	court, 	after 	due
deliberation, having rendered opinions; now in conformity with those opinions, it is
hereby
ORDERED that final results of the administrative review of the antidumping duty
order covering polyethylene terephthalate film from the People’s Republic of China,
Polyethylene 	Terephthalate 	Film 	from 	the 	People’s 	Republic 	of 	China,
76 	Fed. 	Reg. 	9,753 	(Dep’t 	of 	Commerce 	Feb. 	22, 	2011) 	(“Final 	Results”) 	and
accompanying Issues and Decision Memorandum, A-570-924 (Feb. 14, 2011), available
at 	http://ia.ita.doc.gov/frn/summary/prc/2011-3909-1.pdf 	(last 	visited 	this 	date), 	are
sustained, except for the matters covered by the Final Results of Redetermination, ECF
No. 70, (“Remand Results”), filed by Commerce pursuant to Fuwei Films (Shandong)
Co. v. United States, 36 CIT ___, 837 F. Supp. 2d 1347 (2012); it is further
ORDERED that the Remand Results are sustained; and it is further
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Consol. Court No. 11-00061 	Page 2
ORDERED that the subject entries enjoined in this action, see Fuwei Films
(Shandong) Co. v. United States, Consol. Court No. 11-00061 (USCIT Mar. 25, 2011)
(order 	granting 	consent 	motion 	for 	preliminary 	injunction), 	ECF 	No. 	24, 	must 	be
liquidated in accordance with the final court decision, including all appeals, as provided
for in Section 516A(e) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(e)
(2006).
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 24, 2013
New York, New York
Case 1:11-cv-00063-LMG Document 27 Filed 01/24/13 Page 9 of 9